LEGISLATIVE BILL 898 (LB898)

 

Approved by the Governor April 12, 2006

 

 

AN ACT relating to the Open Meetings Act; to amend sections 84-1410, 84-1411, 84-1412, and             84-1414, Revised Statutes Cumulative Supplement, 2004; to change provisions relating             to closed sessions; to provide for detailed agendas; to change provisions relating to public   bodies; and to repeal the original sections.

 

Be it enacted by the people of the State of Nebraska,

 

            Section 1.  Section 84-1410, Revised Statutes Cumulative Supplement, 2004, is amended to read:

            84-1410 (1) Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session if clearly necessary for the protection of the public interest or for the prevention of needles injury to the reputation of an individual and if such individual has not requested a public meeting.  The subject matter and the reason necessitating the closed session shall be identified in the motion to close.  Closes sessions may be held for, but shall not be limited to, such reasons as:

 

            (a)  Strategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent as evidenced by communication of a claim or threat of litigation to or by the public body;

 

(b)    Discussion regarding deployment of security personnel or devices;

 

(c)     Investigative proceedings regarding allegations of criminal misconduct; or

 

(d)               Evaluation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting.

 

            Nothing in this section shall permit a closed meeting for discussion of the appointment or election of a new member to any public body.

 

            (2)  The vote to hold a closed session shall be taken in open session.  The entire motion, the vote of each member on the question of holding a closed session, and the time when the closes session commenced and concluded shall be recorded in the minutes.  If the motion to close passes, then the presiding officer immediately prior to the closed session shall restate on the record the limitation of the subject matter of the closed session.  The public body holding such a closed session shall restrict its consideration of matters during the closed portions to only those purposes set forth in the motion to close as the reason for the closed session.  The meeting shall be reconvened in open session before any formal action may be taken.  For purposes of this section, formal action shall mean a collective decision or a collective commitment or promise to make a decision on any question, motion, proposal, resolution, order, or ordinance or formation of a position or policy but shall not include negotiating guidance given by members of the public body to legal counsel or other negotiators in closed sessions authorized under subdivision (1)(a) of this section.

 

            (3)  Any member of any public body shall have the right to challenge the continuation of a closed session if the member determines that the session has exceeded the reason stated in the original motion to hold a closed session or if the member contends that the closed session is neither clearly necessary for (a) the protection of the public interest or (b) the prevention of needless injury to the reputation of an individual.  Such challenge shall be overruled only by a majority vote of the members of the public body.  Such challenge and its disposition shall be recorded in the minutes. 

 

            (4)  Nothing in this section shall be construed to require that any meeting be closed to the public.  No person or public body shall fail to invite a portion of its members to a meeting, and no public body shall designate itself a subcommittee of the whole body for the purpose of circumventing the Open Meetings Act.  No closed session, informal meeting, chance meeting, social gathering, email, fax, or other electronic communication shall be used for the purposes of circumventing the requirements of the act.

 

            (5)  The act does not apply to chance meetings or to attendance at or travel to conventions or workshops of members of a public body at which there is no meeting of the body then intentionally convened, if there is not vote or other action taken regarding any matter over which the public body has supervision, control, jurisdiction, or advisory power.

 

            Sec. 2.  Section 84-1411, Revised Statutes Cumulative Supplement, 2004, is amended to read:

 

            84-1411 (1) Each public body shall give reasonable advance publicized notice of the time and place of each meeting by a method designated by each public body and recorded in its minutes.  Such notice shall be transmitted to all members of the public body and to the public.  Such notice shall contain an agenda of subjects known at the time of the publicized notice or a statement that the agenda, which shall be kept continually current, shall be readily available for public inspection at the principal office of the public body during normal business hours.  Agenda items shall be sufficiently descriptive to give the public reasonable notice of the matters to be considered at the meeting.  Except for items of an emergency nature, the agenda shall not be altered later than (a) twenty-four hours before the scheduled commencement of the meeting or (b) forty-eight hours before the scheduled commencement of a meeting of a city council or village board scheduled outside the corporate limits of the municipality.  The public body shall have the right to modify the agenda to include items of an emergency nature only at such public meeting.

 

            (2)  A meeting of a state agency, state board, state commission, state council, or state committee, of an advisory committee of any such state entity, of an organization created under the Interlocal Cooperation Act, the Joint Public Agency Act, or the Municipal Cooperative Financing Act, of the governing body of a public power district having a chartered territory of more than fifty counties in this state, or of the governing body of a risk management pool or its advisory committees organized in accordance with the Intergovernmental Risk Management Act may be held by means of videoconferencing or in the case of the Judicial Resources Commission in those cases specified in section 24-1204, by telephone conference if:

 

(a)    Reasonable advance publicized notice is given;

 

(b)    Reasonable arrangements are made to accommodate the public's right to attend, hear, and speak at the meeting, including seating, recordation by audio or visual recording devices, and a reasonable opportunity for input such as public comment or questions to at least the same extent as would be provided if videoconferencing or telephone conferencing was not used;

 

(c)    At least one copy of all documents being considered is available to the public at the site of the videoconference or telephone conference;

 

(d)    At least one member of the state entity, advisory committee, or governing body is present at each site of the videoconference or telephone conference.

 

(e)    No more than one-half of the state entity's, advisory committee's, or governing body's meetings in a calendar year are held by videoconference or telephone conference.

 

            Videoconferencing, telephone conferencing, or conferencing by other electronic communication shall not be used to circumvent any of the public government purposes established in the Open Meetings Act.

 

            (3)  A meeting of the governing body of an entity formed under the Interlocal Cooperation Act or the Joint Public Agency Act or of the governing body of a risk management pool or its advisory committee organized in accordance with the Intergovernmental Risk Management Act may be held by telephone conference call if:

 

(a)     The territory represented by the member public agencies of the entity or pool covers more than one county;

 

(b)    Reasonable advance publicized notice is given which identifies each telephone conference location at which a member of the entity's or pool's governing body will be present;

 

(c)     All telephone conference meeting sites identified in the notice are located within public buildings used by members of the entity or pool or at a place which will accommodate the anticipated audience;

 

(d)    Reasonable arrangements are made to accommodate the public's right to attend, hear, and speak at the meeting, including seating, recordation by audio recording devices, and a reasonable opportunity for input such as public comment or questions to at least the same extent as would be provided if a telephone conference call was not used;

 

(e)     At least one copy of all documents being considered is available to the public at each site of the telephone conference call;

 

(f)      At least one member of the governing body of the entity or pool is present at each site of the telephone conference call identified in the public notice;

 

(g)     The telephone conference call lasts no more than one hour; and

 

(h)     No more than one-half of the entity's or pool's meetings in a calendar year are held by telephone conference call.

 

            Nothing in this subsection shall prevent the participation of consultants, members of the press, and other members of the governing body at sites not identified in the public notice.  Telephone conference calls, emails, faxes, or other electronic communication shall not be used to circumvent any of the public government purposes established in the Open Meetings Act.

 

            (4)  The secretary or other designee of each public body shall maintain a list of the news media requesting notification of meetings and shall make reasonable efforts to provide advance notification to them of the time and place of each meeting and the subjects to be discussed at that meeting.

 

            (5)  When it is necessary to hold an emergency meeting without reasonable advance public notice, the nature of the emergency shall be stated in the minutes and any formal action taken in such meeting shall pertain only to the emergency.  Such emergency meetings may be held by means of electronic or telecommunication equipment.  The provisions of subsection (4) of this section shall by complied with in conducting emergency meetings.  Complete minutes of such emergency meetings specifying the nature of the emergency and any formal action taken at the meeting shall be made available to the public by no later than the end of the next regular business day.

 

            (6)  A public body may allow a member of the public or any other witness other than a member of the public body to appear before the public body by means of video or telecommunications equipment.

 

Sec. 3.  Section 84-1412, Revised Statutes Cumulative Supplement, 2004, is amended to read:

 

            84-1412 (1) Subject to the Open Meetings Act, the public has the right to attend and the right to speak at meetings of public bodies, and all or any part of a meeting of a public body, except for closed sessions called pursuant to section 84-1410, may be videotaped, televised, photographed, broadcast, or recorded by any person in attendance by means of a tape recorder, camera, video equipment, or any other means of pictorial or sonic reproduction or in writing.

 

            (2)  It shall not be a violation of subsection (1) of this section for any public body to make and enforce reasonable rules and regulations regarding the conduct of persons attending, speaking at, videotaping, televising, photographing, broadcasting, or recording its meetings.  A body may not be required to allow citizens to speak at each meeting, but it may not forbid public participation at all meetings.

 

            (3)  No public body shall require members of the public to identify themselves as a condition for admission to the meeting.  The body may require any member of the public desiring to address the body to identify himself or herself.

 

            (4)  No public body shall, for the purpose of circumventing the Open Meetings Act, hold a meeting in a place known by the body to be too small to accommodate the anticipated audience.

 

            (5)  No public body shall be deemed in violation of this section if it holds its meeting in its traditional meeting place which is located in this state.

 

            (6)  No public body shall be deemed in violation of this section if it holds a meeting outside of this state if, but only if:

 

(a)    A member entity of the public body is located outside of this state and the meeting is in that member's jurisdiction;

 

(b)    All out-of-state locations identified in the notice are located within public buildings used by members of the entity or at a place which will accommodate the anticipated audience;

 

(c)    Reasonable arrangements are made to accommodate the public's right to attend, hear, and speak at the meeting, including making a telephone conference call available at in instate location to members, the public, or the press, if requested twenty-four hours in advance;

 

(d)    No more then twenty-five percent of the public body's meetings in a calendar year are held out-of-state;

 

(e)    Out-of-state meetings are not used to circumvent any of the public government purposes established in the Open Meetings Act;

 

(f)      Reasonable arrangements are made to provide viewing at other instate locations for a videoconference meeting if requested fourteen days in advance and if economically and reasonably available in the area; and

 

(g)    The public body publishes notice of the out-of-state meeting at least twenty-one days before the date of the meeting in a legal newspaper of statewide circulation.

 

            (7)  The public body shall, upon request, make a reasonable effort to accommodate the public's right to hear the discussion and testimony presented at the meeting.

 

(8)  Public bodies shall make available at the meeting or the instate location for a telephone conference call or videoconference, for examination and copying by members of the public, at least one copy of all reproducible written material to be discussed at an open meeting.  Public bodies shall make available at least one current copy of the Open Meetings Act posted in the meeting room at a location accessible to members of the public.  At the beginning of the meeting, the public shall be informed about the location of the posted information.

 

Sec. 4.  Section 84-1414, Revised Statutes Cumulative Supplement, 2004, is amended to read:

 

            84-1414 (1)  Any motion, resolution, rule, regulation, ordinance, or formal action of a public body made or taken in violation of the Open Meetings Act shall be declared void by the district court if the suit is commenced within one hundred twenty days of the meeting of the public body at which the alleged violation occurred. Any motion, resolution, rule, regulation, ordinance, or formal action of a public body made or taken in substantial violation of the Open Meetings Act shall be voidable by the district court if the suit is commenced more than one hundred twenty days after but within one year of the meeting of the public body in which the alleged violation occurred.  A suit to void any final action shall be commenced within one year of the action.

 

            (2)  The Attorney General and the county attorney of the county in which the public body ordinarily meets shall enforce the Open Meetings Act.

 

            (3)  Any citizen of this state may commence a suit in the district court of the county in which the public body ordinarily meets or in which the plaintiff resides for the purpose of requiring compliance with or preventing violations of the Open Meetings Act, for the purpose of declaring an action of a public body void, or for the purpose of determining the applicability of the act to discussions or decisions of the public body.  It shall not be a defense that the citizen attended the meeting and failed to object at such time.  The court may order payment of reasonable attorney's fees and court costs to a successful plaintiff in a suit brought under this section.

 

            (4)  Any member of a public body who knowingly violates or conspires to violate or who attends or remains at a meeting knowing that the public body is in violation of any provision of the Open Meetings Act shall be guilty of a Class IV misdemeanor for a first offense and a Class III misdemeanor for a second or subsequent offense.

 

Sec. 5.  Original sections 84-1410, 84-1411, 84-1412, and 84-1414, Revised Statutes Cumulative Supplement, 2004, are repealed.